Considered and decided by Klaphake, Presiding Judge, Foley, Judge,[*] and
Mulally, Judge.[**]

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Redwood County Telephone (Redwood Telephone) appeals from a grant of
summary judgment to respondents Jerry Luttman and Redwood County. Because
Luttman and the county are absolutely immune from suit and because they did not
waive the issue of immunity, we affirm.

FACTS

Redwood Telephone provides telephone service for some of the
residents of the county. Luttman has been the elected county sheriff for 19
years.

This matter arises out of a dispute concerning 911 emergency services. The
county has been attempting to convert its 911 emergency response system from
basic 911 service to E-911 service, which automatically displays a caller's
location on a computer screen, permitting faster and more accurate emergency
response. The county and Redwood Telephone had been negotiating for some time,
through Luttman, about provision of E-911 service, each blaming the other for
the delay in implementation.

On April 20, 1994, a resident asked Luttman, who was speaking to the Redwood
County Cities Association, when E-911 service would be available. Luttman
responded, "When the telephone company gets sold * * * I shouldn't have said
that."

In April 1995, Luttman spoke at a senior citizens' center. When asked when
E-911 service would be available, he said after a dispute involving the local
telephone company is settled. Also in 1995, county resident Jan Remiger wrote
to Luttman twice, asking why E-911 service was not available. Luttman replied
to her second letter, stating:

The area of Wabasso is served by a phone company that will not provide the
enhanced "911" service which means we have no way of knowing where the call is
originating from other than what the caller tells * * *. In regards to your
comment about how good the 911 system is, it is good when properly set up. You
should address your concerns to your telephone service provider.

Based on these three statements, Redwood Telephone sued Luttman, alleging
common law defamation and business disparagement pursuant to Minn. Stat. §
325D.44, subd. 1 (8) (1996), and included the county on a theory of respondeat
superior. Luttman and the county moved for summary judgment on "all claims"
based upon absolute privilege and official immunity. The district court denied
their motion, and they appealed. Although their statement of the case included
reference to the business disparagement claim, they briefed only the defamation
issue. This court held that Luttman's statements were absolutely privileged,
but in a footnote stated:

In addition to its defamation claims, Redwood Telephone also raised claims for
business disparagement based on Minn. Stat. § 325D.44, subd. 1(8) (1996).
Neither party briefed the business disparagement claims before this court.
Therefore, we must remand to the trial court based on the remaining claims.

On remand to the district court, Luttman and the county moved for summary
judgment on the business disparagement claim. The district court granted the
motion based on absolute privilege. Redwood Telephone now appeals.

D E C I S I O N

Summary judgment is appropriate where there is no genuine issue
of material fact and either party is entitled to judgment as a matter of law.
Minn. R. Civ. P. 56.03. The reviewing court must determine whether there are
any genuine issues of material fact and whether the trial court erred in its
application of the law. Bol v. Cole, 561 N.W.2d 143, 146 (Minn.
1997). The question of whether a privilege or immunity exists is an issue of
law that we review de novo. LeBaron v. Minnesota Bd. of Pub.
Defense, 499 N.W.2d. 39, 41 (Minn. App. 1993), review
denied (Minn. July 9, 1993).

Public officials are given absolute privilege, including total
immunity from suit, to make false and defamatory statements, regardless of the
nature or intent of the speaker, when made in the performance of official
duties. Johnson v. Dirkswager, 315 N.W.2d 215, 220 (Minn. 1982);
LeBaron, 499 N.W.2d at 41. The rationale for this privilege is
that the official must be encouraged to act on his public duties, without fear
of second-guessing. Carradine v. State, 511 N.W.2d 733, 735
(Minn. 1994). The privilege has been extended to any official performing a
task essential to his duties. Id. at 736. Whether a task is
essential to an official's duties depends upon a balancing of factors,
including the "nature of the function assigned to the officer and the
relationship of the statements to the performance of that function."
Id.

Redwood Telephone argues that Luttman had no duty to respond to questions
about E-911 and that his official duties are limited to law enforcement.
However, as chief law enforcement officer of the county, Luttman is a natural
candidate for questions concerning emergency response services. The very fact
that he was questioned about E-911 service at public forums indicates that
county residents believed this was part of his job.

We are not persuaded that the difference between defamation and business
disparagement is so significant that absolute privilege is extended in the
former and not the latter cause of action. Defamation is a false statement,
communicated to someone other than the complaining party, which tends to harm
the complainant's reputation and lower his standing in the community.
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.
1980). Business disparagement occurs when a party makes a false or misleading
statement regarding the business or service of another; to put it in another
way, it occurs when a party makes a defamatory statement about a person's
business, rather than a personal matter. Minn. Stat. § 325D.44, subd.
1(8). To extend immunity in the one instance and not in the other would defeat
the purpose of the doctrine.

Immunity of the official extends to the official's employer. See
Carradine, 511 N.W.2d at 737 (immunity enjoyed by officer extends to
employer). Since Luttman is absolutely privileged, no cause of action exists
against the county.

Redwood Telephone argues that Luttman and the county have waived the issue of
absolute privilege as to the business disparagement claim by failing to raise
the issue in the first appeal. The district court's February 7, 1997 order
fails to mention the business disparagement claim, focusing instead on the
defamation action. In Redwood Tel. I, 567 N.W.2d at 721 n.3,
this court discussed only the defamation claim, noting that neither party had
briefed the disparagement issue. The record, regrettably, is unclear as to the
extent of the original trial court ruling; we thus hesitate to apply the
doctrine of waiver. Summary judgment is designed to secure a "just, speedy, and
inexpensive determination of an action" by allowing disposition on the merits
if there are no genuine issues of material facts and if either party is
entitled to judgment as a matter of law. DLH v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). Since it is unclear whether the issue was raised or
examined on its merits, we decline to rule that the trial court erred in its
application of the law.